From the Education Law Prof Blog
By Derek Black
April 6, 2017
Ever since the Betsy DeVos was nominated as Secretary of Education, school choice advocates have been salivating over the possibility that the privatization of education would enter a new expansive era. Last week, the USA Today interviewed some of the nation's leading advocates of school choice and vouchers, who raised new concerns.
Mike Petrilli of the Thomas B. Fordham Institute and Richard Hess of the American Enterprise Institute warn there is a downside to this expansion: the federal government will begin to regulate private schools more. Hess remarked:
"... when you get a Democratic administration, an Elizabeth Warren administration, and they decide that eligible schools ... need to have anti-bullying programs and other accommodations? We will very quickly wind up and wonder, ‘What were we thinking?’” Petrilli said many private schools would forgo the funding if they have to abide by these types of regulations. “They just won’t participate,” he said. “And then what’s the point? You don’t have a program.”
Is this a sign of an evolving school voucher position that not only should the public fund private education, it should fund it with no strings attached?
That choice advocates could take such a position shows just how far the ground has shifted in a few short months. This position is incredible on any number of levels.
First, it assumes an entitlement to public funding for private choice. The problem is that there is no such entitlement. If the federal or state government is giving money to private schools or facilitating private choice, it goes without saying that it has the right to regulate that money.
In fact, conditioning federal money is the real reason for giving out federal money to begin with. The federal government knows that its ability to regulate state and private actors is relatively small. Thus, it achieves its policy objectives by exchanging money for conditions. We do this in everything from health care to education.
Second, state and federal government has funded public education for the past century and a half because it is public education. The state and federal interest in funding private education is extremely small at best.
The only interest in funding private education is to offset certain costs that might otherwise fall on public education. In other words, there is no independent reason to fund private education.
Third, federal funds for public schools come with a long list of conditions. Why we would condition funds in public schools but allow private schools to take them free of conditions?
The only obvious rationale I see is a normative preference for private schools over public schools. Few, however, are willing to publicly fess up to that rationale. If they did, it would be contrary to the second point. In effect, the justification for funding education at all would begin to collapse if we preferenced private education over public education.
Finally, public education is premised on a set of cultural and constitutional norms--non-discrimination, fair process, equal opportunity, social cohesion and freedom from religious coercion. As a general principle, private education is neither premised on nor committed to any of these norms.
Without regulation, they would not accept them. And if they did not accept them, the federal government could not in fairness give them public money. One might even seriously question whether a new set of constitutional concerns would arise if the federal government did so.
While the Supreme Court has upheld vouchers for private religious schools, the Court has also held that the federal government cannot achieve unconstitutional ends indirectly.
For instance, the federal government clearly cannot segregate schools itself. Could it indirectly achieve segregation through its spending power and have private or state entities do it for the federal government? The Court has said no.
Of course, just because private individuals might use public money to segregate or pursue religious ends does not meant that is the federal government's design--hence the prior decision upholding vouchers.
But if we converted into a system dominated by private choice and entirely free of constitutional and cultural norms, the question of whether the government was pursuing a new impermissible design could rise to the fore.